Can We Please Fix the Interstate Placement of Children in Foster Care?

Vivek Sankaran
Vivek Sankaran, University of Michigan Law School

Consider, for a moment, this story I recently discovered in court transcripts.

A paternal grandmother living in New York City learns that her 1-year-old grandson is in Michigan’s foster care system. Days after the child’s removal, she immediately contacts the child’s foster care worker, travels to Michigan, attends the court hearing and requests that the child be placed with her, instead of strangers.

It turns out that she raised the child for the first few months of his life, and the child’s parents both support the move. And if you weren’t convinced already, she happens to be both a licensed foster parent and a foster care worker.

Easy, quick decision, right? Well, not so fast.

Under the Interstate Compact for the Placement of Children (ICPC) – a contract between the 50 states and territories meant to ensure the safe placement of youth – before a court can make an interstate placement of a child in foster care, the state in which the potential caregiver lives must conduct and approve a home study.

While this approach might make some sense in theory, in practice, this process is tearing families apart. First, it takes child welfare agencies months, if not longer, to conduct interstate home studies. While the process slowly unfolds, children languish in the homes of strangers. Courts and other stakeholders remain largely powerless to expedite home studies. Despite the fact that the ICPC is undermining the system’s goal of keeping kids with extended family, stakeholders remain resigned to the reality that these inordinate delays will always exist.

Second, caseworkers (many of whom are not actually licensed social workers) complete home studies using evaluation standards that are unclear and ill-defined. Does a relative need to be licensed as a foster parent? Does a prior criminal conviction render them unfit to care for a child? Does the size of their home matter? What about their employment status? Each jurisdiction seems to have differing – and conflicting standards – by which these decisions are made.

Finally, the lack of clarity over placement standards is exacerbated by the fact that child welfare agencies – and not courts – have the sole discretion to determine whether the placement can be made. In other words, if the agency in the state in which the potential placement lives denies the home study, the placement cannot happen.

Think about that. One caseworker’s unilateral decision can result in a child’s permanent separation from his or her extended family. The judge, along with others who advocate for the family, remain powerless to act.

So how do we fix this mess? First, Congress should impose more stringent requirements as to how quickly home studies must be completed. Federal law currently requires home studies to be done within 60 days in interstate cases, and the Family First Prevention Services Act requires states to maintain an electronic interstate processing system by the year 2027. Stricter, enforceable deadlines are needed now. Absent compelling circumstances, they should be completed within 14 days of a request. A longer deadline only places the needs of the bureaucracy ahead of those of the child.

Second, federal law should clarify exactly what information caseworkers must collect in an ICPC home study, and who is entitled to a copy of that report. At a minimum, all parties in the child welfare case – along with the relatives seeking the placement – should receive a copy of an ICPC home study.

Third, and perhaps most importantly, the ICPC must be amended to put the ultimate decision about whether or not the placement can be made in the hands of the juvenile court judge who is presiding over the child welfare matter. The judge should make this decision after receiving the completed home study and hearing the arguments of everyone involved, including the caseworker who conducted the study.

Having received the report, the judge is best positioned to consider the various arguments about whether the placement should occur, under the governing laws of the state handling the child welfare proceeding. This transparent process will also allow any aggrieved party to seek appellate review. These three steps mark the framework as to how we can fix a broken interstate placement process.

So what happened in the case of the paternal grandmother, the one who also happened to be a licensed foster parent and foster care worker? She waited for 18 months for New York to complete her ICPC home study. During those 18 months, she came to Michigan as much as she could to visit her grandson while he lived in foster care.

But when New York finally approved her home study, child welfare professionals – citing the child’s bond to his Michigan foster parents – argued that he should remain with his foster parents and not be placed with his grandmother.

I don’t know how the story ended; I didn’t have access to the transcripts of the final stages of the case. But I know enough. I know that the delays caused by a broken, cumbersome bureaucracy were being cited to permanently separate a child from his grandmother. I know that the transition – if it even happened – would be traumatic for this child given his attachment to his foster parents.

And I know that no system that truly cares about the needs of children would allow this to happen. None of us would accept this for our families.

So can we please fix the interstate placement of children in foster care?

Vivek Sankaran is the director of the Child Advocacy Law Clinic and the Child Welfare Appellate Clinic at the University Michigan Law School. Follow him on Twitter at @vivekssankaran.

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